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United States v. Lewis

United States District Court, E.D. Kentucky, Southern Division

January 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDY RAY LEWIS, Defendant.

          RECOMMENDED DISPOSITION

          HANLY A. INGRAM UNITED STATES MAGISTRATE JUDGE

         On referral from District Judge Van Tatenhove (D.E. 309), the Court considers reported violations of supervised release conditions by Defendant Andy Ray Lewis. This is his third revocation.

         Judge Van Tatenhove entered a judgment against Defendant in November 2014 for one count of conspiracy to distribute oxycodone. D.E. 223 at 1. Defendant was sentenced to 20 months of imprisonment, followed by three years of supervised release. Id. at 2-3. Defendant began his first supervised release term on December 17, 2015.

         On April 14, 2016, the United States Probation Office (“USPO”) issued a Supervised Release Violation Report charging seven violations of his release terms. See D.E. 290. The violations concerned his use of methamphetamine, cocaine, Suboxone, hydrocodone/hydromorphone and buprenorphine. On May 10, 2016, Defendant stipulated to all seven violations. D.E. 289. By judgment entered August 11, 2016, his release was revoked, and he was sentenced to nine months of imprisonment, followed by three years of supervised release. D.E. 293. Defendant was released again on January 19, 2017.

         On April 25, 2017, the UPSO issued a Violation Report charging two violations based on a positive urine test for buprenorphine (Suboxone). See D.E. 303 at 2. Defendant admitted the violations, and his release was revoked by judgment entered August 3, 2017. D.E. 306. He was sentenced to nine months of imprisonment, followed by three years of supervised release. Id. A new condition was added requiring that Defendant complete a three-month inpatient drug treatment program immediately upon release. Id. at 5. He was released again on February 20, 2018, and completed the required program.

         I.

         On November 29, 2018, the USPO issued the Supervised Release Violation Report (“the Report”) that initiated this revocation. The Report charges two violations.

         First, the Report charges, in Violation #1, a violation of the condition requiring that Defendant refrain from any unlawful use of a controlled substance. According to the Report, Defendant provided a urine specimen on November 6, 2018. On November 15, Alere Toxicology provided results indicating methamphetamine. This is a Grade C violation.

         Second, in relation to Defendant's alleged use of methamphetamine, a Schedule II controlled substance, the Report charges Defendant with a violation of the condition requiring him to refrain from committing another federal, state or local crime and the condition forbidding the unlawful possession of a controlled substance. In light of the Sixth Circuit's decision that use of a controlled substance includes possession, and Defendant's criminal history, Violation #2 charges Defendant with conduct that would be a federal crime, i.e., simple possession of a controlled substance, a Class E Felony, in violation of 21 U.S.C. § 844(a). This is a Grade B violation.

         On January 3, 2019, the USPO issued an Addendum to the Report. The Addendum charges a third violation. Violation #3 alleges a Grade C violation of the condition forbidding the commission of another federal, state, or local crime. According to the Addendum,

On December 30, 2018, the defendant was arrested by an officer of the Williamsburg Police Department and charged with 1) No. Seat Belt, 2) No. Seat Belt, 3) Improper Windshield, 4) No. Brake Light, and 5) Possession of a Controlled Substance - 3rd Degree, Whitley County District Court case number 19-M-4.
Lewis entered pleas of guilty to all charges on January 2, 2019. As to the most serious of the charges, Possession of a Controlled Substance - 3rd Degree (a violation of KRS §218A.1417), he was sentenced to six months of jail, probated for two years, and a fine.

         II.

         On January 4, 2019, the Court conducted an initial appearance pursuant to Rule 32.1. D.E. 311. The Court set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. Id. The government made an oral motion for interim detention, and Defendant did not argue for release. Id. The Court found that detention was appropriate because Defendant ...


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